Re-thinking the death penalty

Since he is known to be cautious to a fault, it unlikely that Union Home Minister Sushil Kumar Shinde would have called for a ‘re-think’ on the death penalty without consulting his senior colleagues in the government. The need for such consultations was all the more compelling in the light of two recent developments. Just last week India was among 39 countries which opposed a UN General Assembly resolution seeking a ban on this extreme punishment. Moreover, Shinde’s plea for a ‘re-think’ on this issue comes in the wake of the hanging of Ajmal Kasab, the Pakistani national who was convicted for his role in the 26/11 terror attack in Mumbai. So eye-brows are bound to be raised about the timing of the Home Minister’s statement. The BJP in particular can be trusted to charge that this dramatic change of stance is in fact meant to find a plausible excuse not to send a convict in the Parliament attack case, Afzal Guru, to the gallows.

None of this, however, must deter the government from swiftly following up on Shinde’s suggestion. The ethical reasons for abolishing the death penalty are all too obvious for large swathes of the international community have subscribed to it. But our opposition parties, determined as they are to make life difficult for the government, are certain to quibble about them. The debate on the death penalty must therefore be conducted on a different terrain. It must focus on the ham-handedness of the police in arresting suspects and their shoddy investigation methods. Both explain why they often fail to secure convictions. Add to this judicial delays and faulty judgements by the courts as well.

Here is the latest example of these infirmities. On 22 November, a division Bench of the Delhi high court acquitted two convicts who had been sentenced to death by a trial court for their involvement in the 1996 bomb explosion in New Delhi’s Lajpat Nagar market. It also reduced a third convict’s sentence to a life term. The scathing remarks of the judges of the division bench on the conduct of the police in this case are all too pertinent. They pointed out that the police had not maintained a minimum standard of probe. No identification parade was conducted; statements of key witnesses had not been recorded; there were no daily diary entries. This is not an isolated case. Time and again the police have been found wanting as have the lower courts. Innocents have languished in jail for years and ultimately acquitted. On these grounds alone a ‘re-think’ on the death penalty is imperative without any further loss of time.

A word about the case of Afzal Guru. Many legal experts have pointed out that the Supreme Court’s verdict is fraught with ambiguities. Other experts have contended otherwise. This debate is pointless. The apex court has sentenced Afzal Guru to be hanged. And, as a constitutionalist, I believe that this is where the matter should end as far as the legal process is concerned.

But the Constitution does allow the president of the republic to commute the death sentence. His decision has perforce to take into account the possible consequences of hanging Afzal Guru. It is certain to roll back the process of normalisation, especially in the Valley, that has been facilitated by our armed forces and by the actions of the state and central governments. Everyone agrees that militant activity has declined in the state and that the separatist movement has lost steam. To hang Afzal Guru – an Indian citizen unlike Kasab – in these circumstances would be to play into the hands of the separatists and their mentors across the border.

The sort of macho attitude of the Hinduvta brigade, who insist on Afzal Guru’s hanging, won’t work. It has no stake in the Valley except a decrepit, ideological one: hang him to prove that the Indian state will never buckle under pressure from Islamic terrorists.

My argument is that Afzal Guru deserves a fate worse than death: he should be kept in isolation and denied bail to prove that India will never countenance any attack on the democratic and secular foundations of our republic. It is in life, not in death, that he will buttress India’s case that the state of J & K is an integral part of the Indian Union. His hanging will be proof of a perverse idea of the India: one rooted in majoritarian communalism.